Christiansen v. Missouri State Bd. of Accountancy, WD

• Court: Missouri Court of Appeals
• Writing for the Court: MANFORD
• Citation: Christiansen v. Missouri State Bd. of Accountancy, 764 S.W.2d 943 (Mo. App. 1988)
• Decision Date: 06 December 1988
• Docket Number: No. WD,WD
• Parties: Paul A. CHRISTIANSEN, Appellant, v. MISSOURI STATE BOARD OF ACCOUNTANCY, Respondent. 40794.

Page 943

764 S.W.2d 943

Paul A. CHRISTIANSEN, Appellant, v. MISSOURI STATE BOARD OF ACCOUNTANCY, Respondent.

No. WD 40794.

Missouri Court of Appeals Western District.

Dec. 6, 1988.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

Jan. 31, 1989.

Application to Transfer Denied March 14, 1989.

Duane Benton, Jefferson City, for appellant.

William L. Webster, Atty. Gen., Curtis F. Thompson, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

MANFORD, Judge.

This is an action ancillary to a disciplinary proceeding before the Missouri State Board of Accountancy. ¹ Appellant seeks access to and review of certain "closed records" held by the respondent. The circuit court entered judgment denying the relief sought, and this appeal followed. The judgment is reversed and the cause remanded with directions.

Appellant presents three points on appeal which, in summary, charge the trial court erred because (1) § 326.134.1, RSMo 1986 grants access to the requested records; (2) Chapter 610, RSMo 1986 grants access to the requested records; and (3) the court refused to enjoin respondent from taking any action regarding appellant's certificate as a Certified Public Accountant until respondent complied with Chapter 610, RSMo 1986.

This matter was submitted to the trial court upon a stipulation of facts, so a brief summary of the pertinent facts suffices.

Appellant has held a certificate to practice accountancy in Missouri for a number of years. In 1983, a complaint was lodged against appellant with the respondent by one Joseph C. DeBlase. Based upon that complaint, respondent filed a formal complaint against appellant pursuant to Chapter 326, RSMo 1986. ² Between August 18, 1983 and September 23, 1987, respondent conducted meetings relative to the issue. This proceeding seeks access and review of the minutes and votes of those meetings. It must be mentioned, although not critical to the disposition herein, that appellant and DeBlase engaged in a separate civil action which is considered in more detail in the case of Christiansen v. Missouri State Board of Accountancy, 764 S.W.2d 952, handed down concurrently with this opinion. That particular civil action bears directly upon the issues in the disciplinary proceeding.

For purposes of disposition of the present case, appellant's points (1) and (2) are discussed and ruled upon conjunctively as they relate to the same issue; to wit, appellant's claim of entitlement to the minutes and votes of respondent during the period of time prescribed above and which involved appellant.

Appellant's contention, simply put, is that he was entitled to such information pursuant to § 326.134, RSMo 1986. Respondent counters that appellant is not entitled to such information because there exists no statutory access to such information under Chapter 326, RSMo 1986, and those meetings were closed under Chapter 610, RSMo 1986 which also denies appellant access to such information.

The joining of this issue causes attention to be focused upon § 326.134 and poses the question of the applicability of Chapter 610 on such proceedings, if any. In order to resolve the matter, this court must undertake construction of statutory law, due to the unusual circumstances readily observable infra.

Our state, and it is not a unique situation, for many years has struggled with the design and implementation of a statutory framework to meet and solve the procedural process for matters presented to the numerous and varied licensing boards. Over a decade ago, a grand design was initiated by the General Assembly to reorganize state government. Since that time, numerous modifications to the design have occurred.

During the First Regular Session of the Eighty First General Assembly (1981), the General Assembly enacted House Substitute for House Committee Substitute for Senate Bill 16 (H.S.H.C.S.S.B. 16). Early in this particular session, H.B. 499 was introduced in the House of Representatives. This measure provided for the repeal of §§ 326.011, 326.012, 326.055, 326.110 and 326.210. The measure was approved by a House vote and forwarded to the Senate. The measure was not acted upon by the Senate prior to the time for adjournment prescribed by our State Constitution. However, during the final hours of that session, the Senate had pending before the House S.B. 16. Prior to final adjournment, the House adopted H.S.H.C.S.S.B. 16. It was, in turn, forwarded to the Senate which gave its approval. The measure became part of the statutory law upon the signature of the Governor and through the prescribed enrollment of legislation. What resulted with the final approval of H.S.H.C.S.S.B. 16 now serves as the basis of controversy in the present proceedings.

H.B. 499 did not pertain to or address § 326.134 or § 326.132. H.S.H.C.S.S.B. 16 repealed well over two hundred statutory sections, ranging through Chapters 161, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 345, and 346, RSMo. In the same measure, 281 new sections were enacted in lieu thereof. This enactment included portions of Chapter 326.

Prior to final approval and indeed even before introduction of either H.B. 499 or H.S.H.C.S.S.B. 16, there was no § 326.134. By the enactment of H.S.H.C.S.S.B. 16, what is now referred to as § 326.134 reads as follows:

326.134. Investigation reports to be confidential, exceptions--immunity from civil actions for board and certain persons, when

1. In order to assure a free flow of information for peer review pursuant to section 326.055, or proceedings before the board pursuant to section 326.132, all complaint files, investigation files, and all other investigation reports and other investigative information in the possession of the board or peer review committee or firm, acting under the authority of section 326.055 or 326.132, or its employees or agents, which relate to such hearings or review shall be privileged and confidential, and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release to any person, other than the permit or certificate holder and the board or peer review committee or firm or their employees and agents involved in such proceedings, or be admissible in evidence in any judicial or administrative proceeding, other than the proceeding for which such material was prepared or assembled. A final written decision and finding of fact of the board, pursuant to section 326.132, shall be a public record.

2. A person shall not be civilly liable as a result of his or her acts, omissions, or decisions in good faith as a member of the board, a peer review committee or firm, or as an employee or agent thereof, in connection with such person's duties.

3. A person shall not be civilly liable as a result of filing a report or complaint with the board or a peer review committee, or for the disclosure to the board or a peer review committee or its agents or employees, whether or not pursuant to a subpoena, of records, documents, testimony or other forms of information which constitute privileged matter in connection with proceedings of a peer review committee, or other board proceedings pursuant to section 326.132. However, such immunity from civil liability shall not apply if such act is done with malice.

Prior to the enactment of H.S.H.C.S.S.B. 16, § 326.130 read as follows:

326.130. Grounds for revocation of certificate.--

After notice and hearing as provided in section 326.132, the board may revoke, or may suspend for a period not to exceed one year, any certificate issued under section 326.060, or any registration granted under section 326.040 or 326.050, or may revoke, suspend or refuse to renew any permit issued under section 326.210 or may censure the holder of any such permit for any one or any combination of the following causes:

(1) Fraud or deceit in obtaining a certificate as certified public accountant, or in obtaining registration under sections 326.011 to 326.230 or in obtaining a permit to practice public accounting under sections 326.011 to 326.230;

(2) Dishonesty, fraud or gross negligence in the practice of public accounting;

(3) Violation of any of the provisions of section 326.021;

(4) Violation of a rule of professional conduct promulgated by the board under the authority granted by sections 326.011 to 326.230;

(5) Conviction of a felony under the laws of any state or of the United States;

(6) Conviction of any crime, an element of which is dishonesty or fraud, under the laws of any state or of the United States, or pleading nolo contendere to any such crime whether or not the imposition of sentencing be suspended and probation be granted;

(7) Cancellation, revocation, suspension or refusal to renew authority to practice as a certified public accountant or a public accountant by any other state for any cause other than failure to pay an annual registration fee in such other state;

(8) Suspension or revocation of the right to practice before any state or federal agency;

(9) Conduct discreditable to the public accounting profession.

Prior to the enactment of H.S.H.C.S.S.B. 16, § 326.132 read as follows:

326.132. Proceedings, how instituted--notice required--subpoenas authorized--appeal, how taken.--1. The board may initiate proceedings under sections 326.011 to 326.230 either on its own motion or on the complaint of any person.

2. A written notice stating the nature of the charge or charges against the accused and the time and place of the hearing before the board on such charges shall be served on the accused not less than thirty days prior to the date of said hearing either personally or by mailing a copy thereof by registered mail to the address of the accused last known to the board.

3. If, after having been served with the notice of hearing as provided for herein, the accused fails to appear at said hearing and defend, the board may proceed to hear...